1st question of the doctor

The Doctor and Student (1518)

Christopher St. Germain

DIALOGUE 2, CHAPTER 48The first question of the doctor, how the law of England may be said reasonable, that prohibiteth them that be arraigned of felony or murder, to have counsel

Stud. Methinketh that the law in that point is very good and indifferent, taking the law therein as it is.

Doct. Why? what is the law in this point?

Stud. The law is as thou sayest, that he shall have no counsel; but then the law is farther, that in all things that pertain to the order of pleading, the judges shall so instruct. him and order him, that he shall run into no jeopardy by his mispleading. As if he will plead that he never knew the man that was slain, or that he never had a pennyworth of the goods that is supposed that he should steal: in these cases the judges are bound in conscience to inform him that he must take the general issue, and plead that he is not’ guilty: for though they be set to be indifferent between the king and the party, as to the party and to the principal matter, as they he in all other matters; yet they be in this case to see that the party take no hurt in form of pleading in such matters as he shall shew to be the truth of the matter. And that it is a great favour of the law. For in appeal, though the justices of favour will most commonly help forth the party, and sometimes his counsel also, in the form of pleading, as they do also many times in common pleas; yet they might in those cases, if they would, bid the party and his counsel plead at their peril. But they may not do so with conscience upon indictments, as me seemeth: for it were a great unreasonableness in the law, if it should prohibit him that standeth in jeopardy of his life, that he should have no counsel, and to drive him to plead after the. strait rules and formalities of the law that he knoweth not.

Doct. But what if he be known for a common offender, or that the judges know by examination, or by an evident presumption, that he is guilty, and he asketh sanctuary, or pleadeth misnomer, or hath some record to plead, that he cannot plead after the form: may not the judges in these cases bid him plead at his peril?

Stud. I suppose they may not: for though he be a common offender, or that he be guilty, yet he ought to have that the law giveth him, and that he shall have the effect of his pleas, and of his matters entered after the form of the law. And also sometime a man by examination, and by Witness, nay appear guilty that is not; and in like wise there may be a vehement suspicion that he is guilty, and yet he is not guilty: and therefore for such suspicion or vehement presumptions methinketh a man may not with conscience be put from that he ought to have by the law, ne yet although the judges knew it of their own knowledge. But if it were in appeal, I suppose that the judges might do therein as they should think best to be done in conscience; for there is no law that bindeth them to instruct him, (but as they do commonly to the, parties of favour in all other cases) but they may, if they will, bid him plead at his peril, by advice of his counsel; and if the appellee be poor, and have no counsel, the court must assign him counsel, if he ask it, as they must do in all other pleas: and that methinketh that are bound to do in conscience, though the appellee were never so great an offender, and though the judges knew never so certainly that he were guilty, for the law bindeth them to do it. And so methinketh that there is great diversity between an indictee and an appellee. And the reason why the law prohibiteth not counsel in appeal, as it doth in an indictment, I suppose is this: There is, no appeal brought, but that of common presumption the appellant hath great malice against the appellee; as when the appeal is brought by the wife of the death of her husband, or by the son of the death of his father, or that an appeal of robbery is brought for stealing of goods. And therefore if the judges should in those cases shew themselves to instruct the appellees, the appellants would grutch and think them partial: and therefore as well for the indemnity of the court, as of the appellee, in case that he be not guilty, the law suffereth the appellee to have counsel. But when that a man is indicted at the king’s suit, the king intendeth nothing but justice with favour, and that is to the rest and quietness of his faithful subjects, and to pull away misdoers among them charitably: and therefore he will be contented that his justices shall help forth the offenders according to the truth as far as reason and justice may suffer. And as the king will be contented therein, it is to presume that the counsel will be contented; and so there is no danger thereby, neither to the court, ne to the party. And as I suppose for this reason it began that they should have no counsel upon indictments, and that hath so long continued, that it is now grown into a custom, and into a maxim of the law, that they shall none have.

Doct. But if the judges knew of their own knowledge that the indictee was guilty, and then he pleadeth misnomer, or a record that he was auterfoits arraigned, and acquit of the same murther or felony, and the judges of their own knowledge know that the plea is untrue, may they not then bid him plead at his peril?

Stud. I think yes; but if they know of their own knowledge that he were guilty of the murther or felony, but that the plea was untrue they knew not but by conjecture or information, I think they might not then bid him plead at his peril.